DHANALAKSHMI BANK vs M/S MAHAVIR ROADWAYS (P) LTD AND ANR on 4 August 2020

1. ... Applicant Bank -Versus- M/S MAHAVIR ROADWAYS (P) LTD., a private Limited Company incorporated under the relevant provisions of Companies Act, 1956 having its registered office at tayashree Tea Complex, 3'd Floor, Rampore, P.O. Gobidapur, P.S. N4aheshtala, B.B.T. Road, Kotkata- 700141 and also at 83-71-D, Rampur, Gobindapur, B.B.T. Road, p.S. Maheshtala, Kolkata-700141 lvlR. SUBHASISH DAS, son of Mr. Dulal Chandra Das, working with M/s MAHAVIR ROADWAYS (P) LTD., having its office at Jayashree Tea Complex,3'o Floor, Rampore, P.O. Gobidapur, P.S. Maheshtala, B.B.T. Road, Kolkata-700141 and also at 83-71-D, Rampur, Gobindapur, B.B.T. Road, P.S. Maheshtala, Kolkata-700141 and residing at C1- 47/L53/L-2, Block-B1-A, Government Colony Dakshin, 16 Maheshtala, P.S. Maheshtala, South 24 Parganas, Kolkata-700142.

2. Counsel for the Applicant Bank: - Counsel for the Defendants:- Mr. Ramesh Chandra Set ex-parte on Defendants Prustl, Ld Counsel 03.01 .2 020

1. ]UDGEMENT This is an Original Application made of Debts Due to Banks and Financial the applicant against the Certificate to the tune of and other usual reliefs. under Section 19 of the Recovery Institutions Act, 1993 initiated by defendants praying for issuance of Recovery Rs. 19,83,581.26 together with interest, cost o\

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3. The instant Original Application being Case T.A. No. 852 of 2014 arising out of No. O.A. 1019 of 2014 was fited on 20.08.2014 before the DRT-II, Kolkata for recovery of a sum of Rs. 19,83,581,26 due and payable from the defendants No. 1 & 2, jointly and severally towards outstanding dues as on 08.08.2014 in respect of Term Loan facilities for the limit of Rs. 26,80,145/- sanctioned and granted by the Applicant Bank to the Borrowers/Defendants No. 1 & 2 for purchase of five numbers of Tata SFC 407 commercial vehicles, The instant O.A. No. 1019 of 2014 had been filed before the DRT-II, Kolkata within the period of limitation and within the jurisdiction of the Hontle Tribunal. Subsequently, the O.A. has been transferred to this Honble DRT-III, Kolkata and renumbered as T.A. No. 852 of 2014. The brief facts of the case as made out in the Original Application by the applicant bank is that the Defendant No. 1 is a Private Limited Company which is the principal borrower, the Defendant No. 2 is the Director of the Defendant No. 1 Company and stood as a guarantor and promised to repay all the indebtedness and liabilities of the said Defendant No. 1 to the applicant Bank in respect of the Term Loan Account, granted to the Defendant No. 1. On 23.08.2011, the Defendant No. 1 through its Director, being the Defendant No. 2, made a request to the applicanfs branch at ldeal Plaza, Ground Floor, 11/1, Sarat Bose Road, P.S. Bhowanipur, Kolkata-700020 for a Term Loan for purchase of five commercial vehicles each at Rs. 5,36,029/, aggregating a sum of Rs. 26.80,145/- and submitted requisite information to secure the loan. The Defendant No. 2 furnished several documents including a Deed of Guarantee dated 26.08.2011 and a Demand Promissory Note of Rs. 26,80,145/- as guarantor. The Applicant Bank having given due consideration and after proper scrutiny of the application dated 23rd August, 2011 submitted by the Defendant No. 2 on behalf of the Defendant No. 1. the principal O.

borrower. backed by guarantee provided by the Defendant No.2 himself, sanctioned the Term Loan with a limit of Rs. 26,80,145/- for the purpose of purchasing five Tata SFC 407 commercial vehicles complete with all spares and accessories, body building etc. to the Borrower, to be repaid by 47 equal monthly installments of Rs. 14,900/- each for 5 loan accounts commencing from 01.10.2011 vide its Sanction Letter/Facility Agreement dated on 26.08.2011 as stipulated in Annexure - 83.

4. The defendants on acceptance of the terms and conditions as contained in the sanction letter dated 26.08.2011 and as stipulated in Annexure-B3 of the said letter sanctioning the Term Loan Account, executed certain documents backed by guarantee provided by the guarantor, being the Defendant No. 2 and a Demand Promissory Note for Rs. 26,80,145l-, as stipulated in Annexure-B, with a promise to pay a total sum of Rs. 26,80,745/- to the Appllcant Bank on demand with interest thereon with monthly rest.

5. The Defendant No. 2, on behalf of the Defendant No. 1, to secure the said five Term Loan executed the Deed of Guarantee agreement on 26.08.2011 in favour of the applicant for Rs. 26,80,145/- agreeing to pay interest @ L4.07o/o per annum with monthly rests and the loan would be repaid in 47 equal monthly installments for all the Rve loan accounts each @ Rs. 14,900/-x 5 units commencing on and from 01.10.2011 and agreed that all the five vehicles would be hypothecated and kept as security as stipulated in Annexure - 84.

7. On 26.08.2011, the Defendants while availing credit facilities with the Applicant Bank for purchase of five numbers of Tata SFC 407 Commercial Vehicle Loan limit of Rs. 26,80,745/- in accordance with conditions had executed the following ban king the terms and documents:

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9. i) A Demand Promissory 26.08.2011. Note for Rs. 26,80,145/- dated ii) D.P Note Delivery-cum-continuity Letter dated 26'08'2011,

iii) Letter seeking Disbursal of Rs. 26,80,145/- dated 26.08.2011,

iv) Facility Agreement dated 26.08.2011 v) Deed of General Hypothecation of the assets dated 26.08.2011,

vi) Notarized irrevocable Power of Attorney dated 26.08'2011

vii) Loan for commercial vehicle dated 26.08.2011

viii) Deed of Guarantee dated 26.08.2011 executed by the Defendant No.2. The Defendants had agreed to pay interest @ 14.07o/o per annum with monthly rests from 08.08.2014 till the date of actual payment. Rate of interest is subject to change from time to time. The Defendants enjoyed the money from the aforesaid loan but failed to operate Term Loan accounts effectively and as a result of which the loan accounts became lrregular NPA and for which the Applicant had issued letter dated 28.10.2013 under Section 13(2) of the SARFAESI Act, 2OO2 demanding a payment of Rs.77,24,659.17 towards the loan outstanding as on 27.08.2011. The Borrower, being the Defendant No' 1 and the Guarantor being the Defendants No. 2 failed and neglected to pay their outstanding amount in spite of Legal Notice/Recall Notice served on 26.07.2014 asking for a sum of Rs. 19,70,19481 as on 26.07.2Of4, as stipulated in Annexure - 'J'. A sum of Rs. 19,83,581 26 is due against the defendants which the defendants had not paid despite repeated demands and request. Finding no other way to recover the dues of the bank, the applicant bank had filed this Original q for the recovery of the aforesaid amount and for the issuance of Recovery Certiflcate against the defendants. Notices were issued to the defendants to show cause as to why the relief prayed for by the applicant bank be not granted. After lssuance of the notice, the defendants appeared through their Counsel and prayed time for Rling of W.S. But no W.S. was filed on behalf of the defendants as a result of which they were proceeded ex-parte vide order dated 03.01.2020 0f this Tribunal. The Tribunal had no other option but to hear ex-parte against the defendants. I have heard the learned Counsel for the applicant bank and have perused the relevant documents. The defendants had not contested the case of the applicant bank. Thus, the point for determination in this case is (i) whether the claim of the applicant bank is within tlme? (ii) whether the defendants had utllized the loan facilities granted by the bank? (iii) Whether the defendants are liable to pay the amount due to the applicant bank or not? The oral testimony comprises of an affidavit of Shri Venkita Krlshnan M, working as Chief Manager of the Applicant Bank. The averments in o-

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13. The applicant bank by oral and documentary evidence has established its case. The documentary evidence comprises from Annexure/Exhibit- A to Annexure 'X, which are available in paper book filed by the applicant bank. From the perusal of the documents referred above and the certified copy of the statement of account, which are filed as Annexure'A-'K it is established that the defendants had availed the flnancial facilities from the applicant bank and had withdrawn the amount through the account. I5, the application and the facts stated by the witness of the applicant in his affidavit are un- rebutted.

16. From the perusal of the of the Annexure 'K' to Annexure 'O', 19,83,581.26 as on 08.08.2014, recover from the defendants. Statements of Accounts which are at the total outstanding comes to Rs. which the applicant bank is entitled to

77. In view of the above discussion and after considering the entire evidence-on-affidavit of the applicant bank and the documents filed by the applicant bank, I have no hesitation to hold that the applicant bank is entitled to recover a sum of Rs. 19,83.581.26 from the defendants who are liable for the same. The applicant bank shall also be entitled to pendentelite and future interest on the said amount @ 14.07o/o per annum JffH from the date of Rling of the Original Application ,) till the date of realization.

ORDER

(1) T.A. No. 852 of 2014 filed by the Applicant Bank is allowed and debt is determined with cost against the defendants. It is hereby ordered that applicant bank is entitled to recover from the defendants the total amount to the tune of Rs.19,83,581.26 (Rupees nineteen lakhs eighty three thousand five hundred eighty one and paise twenty six only) with pendentelite and future interest @ 74.O7o/o per annum with slmple on the amount due from the date of filing of the Origlnal Application, i.e. 20.08.2014 till full and final realization of the claim amount' Amount, if any, paid by the defendants in the loan accounts or amount, if any, recovered by the Applicant Bank after fillng of the O.A. the same be taken into account while arriving at the exact amount of dues/debt payable by the defendants.

Accordingly, pendentelite and future interest shall be calculated on the reduced amount. Defendants are debarred from disposing, alienating or dealing with any of the properties belonging to them till the aforesaid decretal debt is recovered from the defendants. Defendants are given a time of thirty days from the date of the Judgement/Final Order for repaying of the above mentioned dues, so intimated to them. In case the defendants fail to pay the dues within the above mentioned time, the applicant bank is entitled to recover its dues by sale of secured assets, if any. Applicant bank is also entltled to proceed against personal properties of the defendants (both movable and immovable) and also proceed against the defendants personally to recover the dues in accordance with Law.

(5) Let the Certificate of Recovery be drawn up by Ld. Registrar forthwith in terms of Judgement for issuance of the same against defendants in favour of the aPplicant bank under Section 19 (22) of the Recovery of Debts and Bankruptcy Act, 1993 and put up the same for issuance of the Certificate.

(6) Ld. Recovery Officer shall realize the amount as per the Recovery Certificate from the defendants in accordance with law'

Ld. Registrar of this Tribunal is directed to deliver recovery certificate in terms of the final order /judgement for recovery of the sum against the defendants in favour of the Applicant Bank under Section 19 (22) of the Recovery of Debts due to the Bank and Financial Institutions Act, 1993 now known as Recovery of Debts and Bankruptcy Act, 1993

(8) The parties are directed to appear before the Recovery Officer on 16.10.2020 for further action in accordance with law in the event the entire amount is not paid by the said date. Accordingly, the Original Application being T.A' No. 852 of 2014 is allowed and stands disposed of. Copy of the Judgement/Final Order be uploaded in the Tribunal's website. File is consigned to the Record Room. ( Dictated to Steno, transcribed by him, corrected, signeC and pronounced by me in the Virtual Court on this, a5.,l ,0^f{2020) A')'. c'"'5"^*l ( ANIL KUMAR CHATURVEDI ) PRESIDING OFFICER.

Order Sheet (Continuation) case No. TA No.852 of 2014 Dhanlaxmi Bank Limited Vs. M/s Mahavir Road$rays Pvt. Ltd. & Ors. Date of

Order

Order with signature office action with date and dated Signature of parties when Order No. /t ar. r5.ot'2i t, Order pronounced (Vide separate sheets). In the result, T.A. No. 852 of 2014 is allowed with costs. Issue Recovery certifi cate accordingly. A.K ,g\)-nt (A. K.Chaturvedi) Presiding Officer DRT-3,Kolkata